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Companion Website
Blackstone's Criminal Practice 2007
December 2006
December Update 2006
Updates to Blackstone's Criminal Practice 2007 are produced by Michael Hirst, Professor of Criminal Justice, De Montfort University, Leicester, and Laurence Eastham, Editorial Co-ordinator, Blackstone's Criminal Practice.
The December update primarily covers developments occurring or reported in November 2006.
- Part A: General Principles of Criminal Law
- Part B: Offences
- Part C: Road Traffic Offences
- Part D: Procedure
- Part E: Sentencing
- Part F: Evidence
- Appendix 8
- Appendix 9
- New Legislation
PART A GENERAL PRINCIPLES OF CRIMINAL LAW
A3 General Defences
A3.28 Duress of Circumstances
Mullally [2006] All ER (D) 49 (Nov) confirms that a defence of duress of circumstances raised by a motorist on a charge of drink-driving contrary to the Road Traffic Act 1988, s. 5(1)(a) must fail where she continued to drive even after she had been informed that police had arrived to deal with the threat of violence from which she had initially driven away to escape.
A6 Inchoate Offences
A6.34 Attempt: Actus Reus
In Nevard [2006] EWCA Crim 2896, the appellant seriously wounded his wife with an axe and a knife, and then forced her to abandon an attempt to dial 999 for help. When the emergency services rang back he told them that his grandchildren must have been fooling around with the phone. The police attended despite this and his wife was saved. The appellant was charged with wounding with intent and with attempted murder. He pleaded guilty to the wounding. Following a question from the jury, an issue arose as to whether the appellant's attempt to 'divert the emergency services', after he had already injured his wife could amount to attempted murder.
The jury's actual question to the trial judge was:
Can you clarify whether an attempt to withhold care/emergency services constitutes attempted murder, knowing he has pleaded guilty to wounding with intent.
The trial judge consulted with counsel and gave an answer in these terms:
Obviously if a person comes across somebody who is seriously injured in the street and fails to call the emergency services, they could not be charged with attempted murder . . . . the straight answer to the question is 'yes' and it is necessary for me to elaborate upon that. To be sure of attempted murder you must be sure that he did an act or acts with the intention of killing Mrs Nevard . . . . The Crown's case is that he struck the blows with the axe or the axe handle. When that did not work he went and got a knife and stabbed her with that kitchen knife . . . and also that he slashed her arms with a Stanley knife and that when he did those acts, his intention was that she should die.
Now, where the withholding of the emergency services may help you is as to what his intention was . . . . In other words, by seeing what he did after the event you may get an insight as to what his intention was.
It appears from this that the judge did not ultimately answer 'yes' at all. He treated the attempt to divert the emergency services as nothing more than evidence of of the appellant's overall intention. The jury convicted the appellant, and this was upheld on appeal, but the Court of Appeal was criticial of the trial judge's direction. Richards LJ said:
The judge should have made explicit to the jury that attempting to divert the emergency services could not in itself constitute attempted murder.
But why should this be so? With respect, no real explanation is provided or even hinted at in the judgment. An offence of attempt requires an 'act', and merely failing to call for help (i.e. an omission) cannot be said to satisify the actus reus of that offence, even if the failure is motivated by a desire that the victim should die, but in this case it is clear that the appellant committed an act. He took positive steps to prevent the emergency services responding to his wife's call. If V dies because D prevents the emergency services from reaching him, or from helping him if they do arrive (e.g., by keeping them away at gunpoint), that must make D a substantial cause of V's death, even if D was not the one who inflicted the original injuries. If D takes such positive measures to prevent the emergency services arriving, but despite his best efforts V lives, D must surely have attempted to cause V's death. If not, why not?
PART B OFFENCES
B1 Homicide and Related Offences
B1.17 Diminished Responsibility: Relevance of Intoxication
In Hendy [2006] EWCA Crim 819 the Court of Appeal held that the principles established in Dietschmann [2003] UKHL 10 did not change the law relating to diminished responsibility and intoxication, but merely restated the law, so as to correct erroneous rulings of the Court of Appeal in Egan [1992] 4 All ER 470 and Atkinson [1985] Crim LR 314. It followed that a judge who prior to the ruling in Dietschmann directed a jury in accordance with Egan had misdirected the jury.
Hendy was followed in Robson [2006] EWCA Crim 2749, in which the appellant's conviction for murder was quashed after ten years even though there was no surviving transcript of the trial judge's directions to the jury. It was accepted that the judge must have directed the jury in accordance with the law as it was (wrongly) understood at the time.
Rix LJ said (at [40]):
Ultimately . . . the question that arises is whether the conviction is safe in the light of Dietschmann and Hendy. In our judgment, it is not. We are unable to distinguish this case from Hendy. It was common ground between the Crown and the appellant in that case that the judge's misdirection was such as to render the verdict of murder unsafe . . . . We agree. Despite the circumstance that the burden of the defence of diminished responsibility lay on the appellant, and despite the fact that here, as in Hendy, the appellant did not give evidence at his trial, we readily conclude that, if the jury had been correctly directed in accordance with the Dietschmann direction, it may well have been persuaded that the appellant was suffering from an abnormality of mind that, despite drink or drugs, had substantially impaired his mental responsibility. For all we know, the jury here had been persuaded by the evidence of the three defence psychiatrists at trial that the appellant had been suffering from an abnormality of mind, but were not satisfied that his drink had not removed the defence from him. We are unable to see how we can second guess that judgment by describing the conviction as nevertheless safe, with or without new evidence.
A discretionary life sentence was substituted, with a recommendation that the Parole Board should give immediate consideration to the question of the appellant's possible release. Whether the appellant remained a danger to the public was not something which the court considered itself equipped to decide.
B1.49 Causing the Death of a Vulnerable Adult: Sentence
In Liu and another [2006] All ER (D) 242 (Nov) a sentence of six years' imprisonment was upheld where the defendant had stood by and allowed his mistress to treat his depressed and inadequate Chinese wife as a slave and mount a campaign of "sustained physical cruelty" against her, culminating in her death. The mistress pleaded guilty to manslaughter and to causing GBH with intent, and was sentenced to nine years. Both sentences were rightly described as 'not a day too long'.
B1.92 Solicitation of Murder
At common law, incitement is an offence under English law only where the act incited would equally be an offence under English law. In Hamza [2006] EWCA Crim 2918, however, the Court of Appeal held that the Offences Against the Person Act 1861, s. 4, makes the incitement or solicitation of murder an offence in England, even where the proposed killing is to be committed by foreigners abroad in circumstances that would not fall within English criminal jurisdiction. In other words, the act of incitement may be an offence under English law, even if the proposed act of murder would not be.
B4 Theft, Handling Stolen Goods and Related Offences
B4.20 Property Belonging to Another: Equitable Proprietary Interests
Shadrokh-Cigari [1988] Crim LR 465 was applied by the Courts-Martial Appeal Court in Webster [2006] EWCA Crim 2894. The appellant in this case was a sergeant in the army, who was charged with stealing a medal 'belonging to the Secretary of State' by selling it on the internet for £605. His captain had been issued with two of the medals by mistake, and had passed one of them to the appellant.
The court held that the Secretary of State had 'clearly' retained a proprietary interest in the medal for the purposes of the Theft Act 1968, s. 5(1), and it was not therefore open to the captain to permit its sale (as the appellant alleged he had done). The court inclined to the view that the judge-advocate at the court-martial could properly have directed the board of this as a matter of law, but even if it had been left to the board as a question of fact, only one possible conclusion could have been reached.
B5 Deception Fraud and Blackmail
B5.1 Deception and Fraud: Old and New Law
The Fraud Act 2006 (Commencement) Order 2006 (SI 2006 No. 3200) brings the Act fully into force on 15 January 2007.
B5.92 Fraud Bill
The Fraud Act 2006 (Commencement) Order 2006 (SI 2006 No. 3200) brings the Act fully into force on 15 January 2007.
B16 Revenue and Social Security Frauds
B16.5 VAT Frauds
The scope of the offence created by the Value Added Tax Act 1994, s. 72, was examined by the Court of Appeal in Hashash [2006] EWCA Crim 2518, in the course of which an issue arose as to the proper construction of the Sixth Council Directive (EEC) 77/388 on the harmonisation of the laws of member states relating to turnover taxes and the applicability of the term 'economic activity' in Article 4(1) of the Directive.
The appellant was alleged to be a party to a 'carousel' or 'missing trader' fraud, in which the fraudster's objective is not to buy and sell goods in the ordinary course of business, but to put himself in a position to receive VAT payments for which he has no intention of accounting. The goods, if they exist at all, are no more than a token, necessary to lend verisimilitude to the transactions. In this case, the prosecution had argued that no goods changed hands.
Having considered recent decisions of the European Court of Justice in Halifax plc v Customs and Excise Commissioners [2006] Ch 387 and Optigen Ltd v Revenue and Customs Commissioners [2006] Ch 218, the Court of Appeal concluded (for the purpose of confiscation proceedings against the appellant) that liability for payment of VAT may arise even in respect of fraudulent transactions involving non-existent goods, and rejected the appellant's argument to the contrary.
Although manfestly illegal activities such as the supply of narcotic drugs or counterfeit currency falls outside the scope of the Sixth Directive and cannot be subject to VAT, the position is different where the transactions are ostensibly lawful, irrespective of whether any particular trader is acting fraudulently or not. In the present case, there were invoices and delivery notes which purported to prove the sale and of the transfer of title in goods (computers and computer parts) which may be traded legitimately. Money transfers were made as part of these sale and purchase transactions. Viewed objectively, therefore, the transactions to which the appellant and his company were parties were subject to VAT. It followed on the facts that the appellant was properly convicted of the offence of being knowingly concerned in the fraudulent evasion of VAT, contrary to s. 72(l).
B23 Immigration Offences
B23.6 Entering the UK without a Passport etc
Thet v DPP [2006] EWHC 2701 (Admin) establishes that an asylum seeker who has entered the UK on a false passport may have a defence to a charge under the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s. 2(1) (failing to produce a valid passport etc. at a leave or asylum interview) on the basis that the passport he used was false, even if he is not able to produce that false passport in order to satisfy the defence provided by s. 2(4)(d).
The appellant in this case satisfied the court that it had been impossible for him to obtain a passport in his country of origin. He therefore, 'clearly had a reasonable excuse for not providing a genuine immigration document within three days of his asylum interview'. In those circumstances, he had a valid defence to the charge.
Lord Phillips CJ recognised that this ruling might cause difficulties for the immigration authorities:
As to the submission . . . that this interpretation will undermine the object of section 2, I fear that to some extent it may do so. Insofar as it does not achieve the object with which it was enacted, the reason is that the draftmanship of the section leaves much to be desired. But the result reached by my interpretation is not an absurdity in as much as the section, as I would read it, is nonetheless calculated to assist the immigration authorities to determine the country from which an immigrant has come and to deal with the problem of the immigrant who simply destroys all documents and declines to give any information as to his country of origin. The reason for this is that to rely on the defence of reasonable excuse for not being in possession of a valid immigration document, the immigrant is likely to have to establish the country from which he has come. This case is an example of that requirement being satisfied. The defence under (4)(d) requires not merely the production of a false immigration document, but again proof that that document has been used for all purposes in connection with the journey from beginning to end, and again that latter requirement, coupled with the production of the document, will assist to determine the country of origin.
B23.10 Assisting Unlawful Immigration
The ambit of the offence under the Immigration Act 1971, s. 25, was examined in Rechack [2006] EWCA Crim 2975. The appellant, a French citizen, purchased (in France) ferry tickets to England for himself and another man, Manun, who was traveling on a false passport. On arrival, he falsely informed the immigration authorities that Manun was his cousin. Both acts were relied upon by the prosecution as giving rise to an offence under s. 25(1); but, since the appellant was not a British citizen etc., the acts done in France could not fall within English jurisdiction (see s. 25(5)).
As to the lies told to immigration officers, Gage LJ said:
It is, in our judgment, possible that that act could found an act evidencing 'the carrying out of arrangements for securing or facilitating' Manun's entry into the United Kingdom, but, in our judgment, it would need a careful direction from the recorder as to how the jury could arrive at such a conclusion. Furthermore, it would require in this case all the jury to be satisfied that it was that act which they had relied on. There is, of course, no way now in which this court can tell whether the jury found the first act proved or the second act or both of them proved. It follows that we cannot be satisfied that even if the count had been drawn under section 25 as it was in its old form that the appellant would have been convicted. Accordingly, this conviction must be quashed . . .
PART C ROAD TRAFFIC OFFENCES
C1 Definitions and Basic Principles
C1.13 Road or Other Public Place
In Filmer v DPP [2006] All ER (D) 08 (Nov), it was held that the privately owned customer parking area of a tyre and exhaust centre could properly be described as a 'public place'. The parking area was readily accessible by members of the public for parking their vehicles, as was used after hours as a turning space in the road. It was also used as a shortcut by pedestrians.
PART D PROCEDURE
D24 Appeal to the Court of Appeal
D24.22 Prosecution Appeals: the Criminal Justice Act 2003
The scope of the Criminal Justice Act 2003, s. 58, was examined by the Court of Appeal in Thompson and another (application under s. 58 of the Criminal Justice Act 2003) [2006] EWCA Crim 2849. The court held that s. 58 could not be used by the prosecution in order to challenge a ruling by the judge dismissing a charge and quashing an indictment (or a relevant count in an indictment) pursuant to the Criminal Justice Act 1998, sch. 3, para. 2, on the basis that the evidence would not be sufficient for a jury properly to convict.
As the Court pointed out, s. 58 and its ancillary provisions appear to assume that an acquittal is the necessary result of either the ruling itself or the Crown's attempt, if unsuccessful, to appeal it: see s. 58(8), s. 58(12) and s. 61(3). A successful sch. 3 dismissal application does not, however, lead to acquittal. Nor did a study of Hansard suggest that s. 58 was intended to have any application in such cases.
It remains open to the prosecution to seek a voluntary bill of indictment in such cases: see sch. 3, para. 2(6)(a), which has not been repealed by the 2003 Act.
D24.25 Appeals against Conviction: Statutory Basis of Determination of Appeal
When the Court of Appeal is invited to consider whether there is a 'lurking doubt' as to the safety of a conviction, the views of the trial judge are irrelevant to the task of the Court of Appeal, even if it appears that he believes the conviction may be unsafe: Webster [2006] All ER (D) 219 (Nov).
PART E SENTENCING
E1 Sentencing: General Provisions
E1.8 Increase in Sentences for Racial or Religious Aggravation
Kelly [2001] EWCA Crim 170, [2001] 1 Cr App R (S) 341 (see also B2.20) was applied in Bridger [2006] EWCA Crim 3169, in which the Court of Appeal emphasised the need for the sentencer to indicate, in the interests of transparency, what punishment would have been imposed apart from the racial or religious aggravation. This would be of benefit to the public and, indeed, to the Court of Appeal if the sentence passed becomes subject to challenge.
A custodial sentence is not inevitable even where such aggravation is clearly present, although in other cases the aggravation may tip the balance in favour of such a sentence.
E5 Custodial Sentences for Dangerous Offenders
E5.9 Assessment of Dangerousness
Lang [2005] EWCA Crim 2684 and O'Brien [2006] EWCA Crim 1741 were examined in O'Halloran [2006] EWCA Crim 3148. The court held that a sentence of imprisonment for public protection (IPP) was not available under the Criminal Justice Act 2003, s. 225, in relation to any offence that is not a specified serious offence under sch. 15. It followed that a sentence of IPP imposed in respect of a charge of unlawful wounding under the Offences Against the Person Act 1861, s. 20, was unlawful. In practice, this made no real difference to the appellant's sentence, because a concurrent sentence of IPP imposed for robbery was upheld, and the court held that the trial judge had been right to take the s. 20 offence into account when setting the overall term.
Treacy J suggested that the principles set out in O'Brien at [58] et seq (see also the August 2006 update) can be distilled to the following three propositions:
- whilst it is not unlawful to impose consecutive indeterminate sentences, or an indeterminate sentence consecutive to another period of imprisonment, such a practice is undesirable. Common sense suggests that life imprisonment or IPP should start immediately it is imposed;
- where a judge intends to order that a period before which the defendant becomes eligible for parole should be served consecutively to an existing sentence, or should follow the period of return to prison under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, then in order to ensure that the sentence imposed includes the balance of the existing sentence, or the period under section 116, he should increase the notional determinate term to reflect that balance or that period (see Hayward [2000] 2 Cr App R(S) 418;
- where a judge imposes concurrent and indeterminate sentences for two or more offences with concurrent minimum terms, and absent those indeterminate sentences he would have passed consecutive determinate sentences, he may reflect in the notional determinate term the totality of the offending by either choosing the same notional determinate term for all the offences or setting an increased notional determinate term for the most serious offence.
Treacy J continued:
We agree with and endorse the approach of the Court in O'Brien. ...
In the circumstances, where the judge has before him for sentence a specified but not a serious offence of some gravity, at the same time as a serious offence which would attract a sentence of detention or imprisonment for public protection, he should:
(i) impose a sentence of IPP for the serious offence; and (ii) impose a concurrent extended sentence for the specified non-serious offence (see Lang paragraph 20). However, in fixing the notional determinate term for the IPP, the judge is entitled to take account of the circumstances of the specified non-serious offence. To hold otherwise would give unwarranted bonus to the offender and would short-change the victims and the public.
E21 Confiscation Orders
E21.10 Determination of the Recoverable Amount
Scragg [2006] EWCA Crim 2916 provides guidance as to the calculation of the benefit to an offender where he has unlawfully acquired and then sold on the assets in question (which in this case were second hand cars). The Court of Appeal stressed that when arriving at a determination of benefit under the Proceeds of Crime Act 2002, s. 76, a court must not penalise the offender twice in respect of the same property or benefit, but should instead have regard to s. 80.
Judge Lorraine-Smith, giving the judgment of the court, said:
In our judgment what the judge should have done . . . was to apply section 80 to the facts of the present case. He should first have looked at the value of the cars when the appellant obtained them and then gone on to see whether there were any proceeds of sale in his hands that exceeded the value of the vehicles when he obtained them. On this basis . . . where a vehicle was obtained by the appellant worth £10,000 and sold for £8,000 the benefit would be £10,000. On the other hand if the vehicle was sold not for £8,000 but for £12,000 then the benefit would be £12,000. This approach seems to us not only to follow the approach required by the section but also to be in keeping with the principle behind the confiscation legislation namely to relieve criminals of their ill-gotten gains. It is true that the legislation sometimes operates in a draconian manner, but not so as to render a defendant liable to confiscation twice over for the same criminal conduct. It is not in our view realistic to treat the purchase and sale of the same vehicle as separate criminal enterprises; each falls within the ambit of the offence to which the appellant pleaded guilty namely fraudulent trading by carrying on the business of his company with intent to defraud creditors of the company.
E23 Exclusions and Disqualifications
E23.8 Restraining Orders under the Protection from Harassment Act 1997
The Sentencing Guidelines Council Guideline on Breach of a Protective Order is a definitive guideline which affects all breaches of a restraining order made under the Protection from Harassment Act 1997, s. 5 or a non-molestation order under the Family Law Act 1996, s. 42 when sentenced on or after 18 December 2006.
PART F EVIDENCE
F6 Examination in Chief
F6.6 Refreshing the Memory
The Criminal Justice Act 2003, s. 139, fell to be considered in McAfee [2006] EWCA Crim 2914. A prosecution witness, who had originally told a series of lies to the police, but later signed a written statement admitting these lies and incriminating the appellant and his co-accused, was permitted at trial to refresh her memory from this written statement, on the basis of her assertion that her recollection had been better at the time at which she had made that statement.
On appeal, it was submitted that the decision to allow her to refresh her memory from this document was wrong, because: (i) there was no proof that her recollection was 'likely to have been significantly better when she made the statement'; (ii) the statement in quetion was neither her original statement nor a contemporaneous one; (iii) that she was a drug taker and had lied to the police on other occasions; and (iv) there was no corroboration of her assertion that her recollection had indeed been better at the time of making the statement.
None of these objections were upheld. The trial judge had been fully entitled to conclude that the conditions prescribed by s. 139 had been satisfied, and there was no longer any requirement the document used to refresh memory must be a contemporaneous one. Nor was there any no good reason for the judge in this case to have exercised his discretion to prevent this witness from refreshing her memory.
F11 Admissibility of Previous Verdicts
F11.2 Convictions as Evidence of Facts on which Based
Kordansinki [2006] EWCA Crim 2984 holds that the rule in Hollington v F Hewthorn & Co Ltd [1943] 2 All ER 35, which clearly survived the enactment of the Police and Criminal Evidence Act 1984, ss. 73 and 74, has nevetheless been abrogated by the Criminal Justice Act 2003, s. 99(1) (bad character: abolition of common-law rules). Evidence of the appellant's convictions for rape and kidnapping before a court in Poland were accordingly held to be admissible for the purpose of proving that he did in fact convict the offences of which he was convicted.
The decision in Kordasinski is perhaps a little surprising. The rule in Hollington v Hewthorn focused not so much on the admissibility of evidence of bad character per se as on the evidential value of the findings of another court. A conviction or acquittal (or a civil ruling) by some other court was seen as nothing more than the opinion of that particular court based on whatever evidence had been put before that court. You could not prove in a civil case that D's employee had been to blame for a road accident by proving that a magistrates' court had convicted that employee of careless driving. The earlier court's finding infringed both the hearsay rule and the rules excluding evidence of non-expert opinion. It was not therefore obvious that s. 99 of the 2003 Act was intended to abrogate the rule and some commentators assumed it did not. Even where evidence of D's propensity to rape is admissible under the Criminal Justice Act 2003, it might still have been argued that something more than evidence of a foreign conviction was required to establish that propensity.
Little now is left of the rule in Hollington v Hewthorn. But a foreign conviction still lacks the status of a domestic conviction under the Police and Criminal Evidence Act 1984, s. 74, which is presumed to be justified unless the contrary is proved.
F12 Character Evidence: Evidence of Bad Character of Accused
F12.13 Propensity at Common Law and under the Criminal Justice Act 2003, s. 101(1)(d)
The difference between the old and new regimes governing the admissibility of bad character evidence for the purpose of proving guilt is illustrated by Abnett [2006] All ER (D) 244 (Nov), where the appellant was charged with involvement in an armed robbery. Firearm discharge residue was found on his clothing, but the residue had not come from the gun used in the robbery, and seems to have suggested, not that the appellant must have been one of the robbers, but merely that he was the kind of villain who might well have been. There was no obvious striking coincidence here: the discovery of such residue might have been expected if the police had set out to round up 'known robbers'. It was nevertheless held to be admissible as proof of propensity under s. 101(1)(d).
The Court of Appeal held that three questions had to be considered before such evidence was admitted at trial: (i) whether the accused's character established a propensity to commit offences of the kind charged; (ii) whether that propensity made it more likely that he had committed the offence charged; and (iii) whether it was unjust to rely on that evidence, and, in any event, whether the proceedings would be unfair if they were admitted.
In contrast, even under the new law an old conviction for indecent exposure has been held not to provide evidence of propensity on a charge of rape, or to affect the defendant's credibility: Leaver [2006] EWCA Crim 2988.
F18 Evidence of Identification
F18.28 Use of Visual Evidence at Trial
The third of Rose LJ's examples in A-G's Ref (No 2 of 2002) [2003] 1 Cr App R 321 was considered in Abnett [2006] All ER (D) 244 (Nov). A police officer, who had spent some time interviewing the appellant and repeatedly viewing CCTV footage of a robbery, together with still images from that film, was permitted to state that he was '100% sure' that one of the robbers pictured was the appellant. He had no specialist training in facial mapping or any other such technique, and (with respect) it is not obvious how or why his repeated viewing of the images would have equipped him to make a significantly more reliable identification than the jury, who had access to the same footage and images. Contrast Clare [1995] 2 Cr App R 333, in which the police officer had spent hours analysing footage of crowd violence and was able (inter alia) to explain to the jury how the incident in question had developed.
APPENDIX 8
The Consolidated Criminal Practice Direction
See Amendment No. 14 to the Consolidated Criminal Practice Direction (Forms for Use in Criminal Proceedings) [2006] All ER (D) 34 (Nov). This amends Annex D of the Consolidated Criminal Practice Direction handed down by the Lord Chief Justice on 8 July 2002, as subsequently amended.
It sets out two forms to be substituted for those in Annex D and two new forms to be added to that annex. The new Part 14 indictment form is for use where a two-stage trial is ordered under s. 17 of the Domestic Violence, Crime and Victims Act 2004 (the 2004 Act). The substitute Part 15 application form is revised so that it includes reference to applications under s. 17 of the 2004 Act. The substitute Part 66 prosecution appeal form is revised to make it clear which defendant the application/appeal affects and the new Part 68 appeal form is for use in an application/appeal against a sentence review decision under s. 74(8) of the Serious Organised Crime and Police Act 2005.
This Practice Direction took effect on 6 November 2006 when the Criminal Procedure (Amendment No. 2) Rules 2006 come into force.
APPENDIX 9
Sentencing Guidelines Council Guideline on Domestic Violence
The SGC has issued a definitive guideline which affects all offences sentenced on or after 18 December 2006. It adopts the following definition of domestic violence: "Any incident of threatening behaviour, violence or abuse [psychological, physical, sexual, financial or emotional] between adults who are or have been intimate partners or family members, regardless of gender or sexuality". The emphasis of the guideline is "that offences committed in a domestic context should be regarded as being no less serious than offences committed in a non-domestic context. Indeed, because an offence has been committed in a domestic context, there are likely to be aggravating factors present that make it more serious".
Sentencing Guidelines Council Guideline on Breach of a Protective Order
The SGC has issued a definitive guideline which affects all breaches of a restraining order made under the Protection from Harassment Act 1997, s. 5 or a non-molestation order under the Family Law Act 1996, s. 42 when sentenced on or after 18 December 2006.
NEW LEGISLATION
Companies Act 2006
This Act received the Royal Assent on 8 November. Its main provisions will come into force on dates that have yet to be appointed, but some provisions came into force on Royal Assent. Detailed provisions governing commencement may be found in s. 1300 of the Act.
Safeguarding Vulnerable Groups Act 2006
This Act, which received the Royal Assent on 8 November, declares itself to be 'An Act to make provision in connection with the protection of children and vulnerable adults'. It provides that certain activities be regulated activities and that persons who are mentioned on the relevant list maintained by the Independent Barring Board be prohibited from taking part in or seeking to take part in those activities. Breach of the prohibition is an offence; the Act provides for a range of either-way and summary offences including offences carrying a maximum penalty of five years' imprisonment. The Act repeals the Criminal Justice and Court Services Act 2000, ss. 26 to 34. None of the Act's material provisions are yet in force.
Fraud Act 2006 (Commencement) Order 2006 (SI 2006 No. 3200)
This Order brings the Act fully into force on 15 January 2007.
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